In Which Steven Writes Another Overly Long Post About A Controversial But Potentially Significant BSA Appeal, And Starts Off Disagreeing With The Judge, But Winds Up Coming Close To Changing His Mind, Perhaps Because She Cites His Article.

Justice Mallon has overturned a Broadcasting Standards Authority decision that found a Close Up programme unfair (search for “Heather Green” here). I discussed the original decision here.

To recap: during a programme on “naming and shaming” drunk drivers, Close Up sent a reporter to the courts. He interviewed two convicted drunk drivers coming out of court. One was happy enough to be interviewed. The other wasn’t. Viewers were treated to the edifying spectacle of the camera crew chasing her down the street and in and out of a shop. (She was being shamed – get it? So her reaction was relevant to the programme). Still, she was pixelated – but at the end of the programme, she was “unmasked” and the pixelation was ceremoniously removed. (She was named. Named and shamed. So viewers were able to really understand what naming and shaming was all about, because here was this example of it before their eyes. It would help us decide whether or not naming and shaming really works. Except that… no, it didn’t do that at all. It did show us that some wrongdoers – half, on this sample – don’t like being shamed on national TV).

The BSA said she was treated unfairly. It said that, by chasing the woman down the street and then sensationally unmasking her, Close Up had gratuitously singled her out and gone out of its way to humiliate her. On my reading of the BSA’s decision, if TVNZ had simply filmed her, unpixelated, coming out of the court and tried to interview her, and revealed her name and drunk driving history, that would have been okay. The BSA says that the facts were matters of “public record” – it was the manner in which she was portrayed that was unfair.

As I’ve said, I’m on the fence about that decision. Fair to say, I don’t have much sympathy for a twice-convicted drunk driver. It wasn’t even her who complained. It was a publicly spirited couple who thought she’d been treated unfairly. I think reasonable people can disagree about it.

But I think it was within the zone of the BSA’s discretion. They were unanimous, after all. Two of them are former broadcasters, and have never struck me as particularly soft.

But Justice Mallon disagreed. She just couldn’t see that this was unfair. She thought that the BSA ignored a gob-smackingly relevant consideration – the requirements of open justice, which allow journalists to interview people coming out of court, and to broadcast the details of what happens in court.

Well, yes. But as I explained, I don’t think the BSA for a moment thought they were doubting that. Had they thought about it a bit harder, they probably would have thrown in a paragraph to that effect.

Justice Mallon also thought the BSA hadn’t paid enough attention to the point that the “unmasking” was not gratuitous because it was relevant to the theme of the programme. It’s true that the BSA didn’t spell this out. But it’s a bit insulting to suggest they didn’t understand what Close Up was trying to do. I suspect they felt that it was a ham-fisted attempt to test the “name and shame” idea that didn’t really ameliorate the unfairness.

Justice Mallon also pointed out other decisions in which the BSA has allowed broadcasters to single out individual people and use them as examples of bigger problems. Right. But in none of them did the broadcaster chase someone down the street and then theatrically remove their pixelation.

There’s an element of the BSA being hoisted by their own petard, as they had this decision cited back at them – a case where they found the treatment of an airport worker caught on hidden camera wasn’t unfair. I think it was.

Anyway, having found that the specialist broadcasting experts on the BSA missed a couple of key considerations, the usual course would have been to send the case back to them to re-consider the decision, this time taking those considerations into account. But instead, she re-took the decision herself. This just wasn’t unfair, she decided.

This was because those overlooked considerations inescapably drove her to the conclusion that any decision to uphold this complaint would be an unjustified restriction on freedom of expression. She kindly cited my article with Claudia Geiringer on the BSA and the Bill of Rights. Following our suggested methodology (which in turn draws heavily on overseas free speech theory and cases), she first looked at the values underlying the particular exercise of speech in question. She found that the speech in this case was particularly important. It explored a practice that endangers thousands of us. It investigated the use of a particular form of deterrent. It highlighted the sheer ordinariness of drunk driving. Weighed against that, the woman’s (and the public’s) interest in avoiding embarrassment for a particular drunk driver was not heavy. So the restriction was unjustified.

Excuse some serious geekiness, but for me, this is a pretty exciting development in our free speech jurisprudence. The courts are now prepared to conduct a proportionality analysis in these cases – and will expect the BSA to do likewise. (Not to mention the censorship authorities…)

I don’t think I would have tackled the proportionality analysis the same way (I think Mallon J rather downplays the general aim of protecting people against humiliation, and I think Close-Up’s humiliating approach added little to the underlying public interest in the themes being discussed). But I can respect her reasoning. And as a methodology – creating a culture of justification based on weighing the significance of the standards and the speech in each case – this strikes me as a breakthrough.

[PS: Kudos to TVNZ lawyer Willy Akel, who was sure all along that this appeal was a winner. I disagreed, but he was right.]